Using ‘negation and acknowledgment’ to analyze Communications issued by the mandate

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By Arvind Narrain and Kim Vance

Introduction

‘Negation and acknowledgment’ as a frame of the Report

Using ‘Negation and acknowledgment’ to analyze Communications issued by the mandate

In the Communication issued to Russia [5] regarding the extra judicial killings in Chechnya of homosexual persons it was observed that:

Mr. Alvi Karimov, spokesperson of Mr. Ramzan Kadyrov, the head of the Chechen Republic, responded to reports of arrests of gay and bisexual men to Interfax news agency with the following statement: “It is impossible to detain and persecute people who simply do not exist in the Republic. If there were such people in Chechnya, the law-enforcement agencies wouldn’t need to have anything to do with them because their relatives would send them somewhere from which there is no returning”. Similarly, Ms. Kheda Saratova, a member of the human rights council of Chechnya, told a Russian radio station: “I didn’t receive a single appeal, but in case of any I would not even consider it. (…) In our Chechen society, any person who respects himself, our traditions and culture will hunt down this kind of person without any help from the authorities and do everything to make sure that they do not exist in our society.”[6]

While the statements denying the existence and humanity of LGBT persons may well have elicited an outraged response if it was applied to religious/ethnic minorities, in the case of the LGBT persons it was deemed entirely acceptable. Even if the statements could be passed off as those of local authorities, what was telling was Russia’s non-response to the joint communication which reinforced the negation of the existence of LGBT persons in Chechnya and the ‘non-issue’ that violence suffered by LGBT persons was for the Russian state. In responding to another joint Communication regarding alleged administrative proceedings against Ms. Evdokia Romanova for “promotion of non-traditional sexual relations to minors through social networks and Internet”, the Russian Federation indicated the reason for its non-reply:

The Russian Federation does not intend to respond to individual or joint submissions from the special procedures of the Human Rights Council when the author or co-author is the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. We wish to recall that, at the Council’s thirty-second session, Russia formally stated that it would not recognize the mandate of or cooperate with this special procedures mechanism.[7]

In sum, what stands reinforced is how ‘negation’ operates to deny the existence of LGBTI persons, leave alone the possibility that LGBT persons have rights. The challenge in a swath of countries across the world is to assert the existence of LGBT persons and the fact that the framework of universal human rights applies to all persons, including LGBT persons. The gravity of this challenge can be seen in the fact that even when grave violations of human rights occur, and the violations are brought to the attention of states such as Egypt, Russia and Tunisia, the states have chosen not to respond.

In this context, one must note a few inroads into this overwhelming negation. Indonesia, which is a part of the OIC, could very well have adopted the OIC position of non-cooperation with the mandate. However in response to a joint communication [8] concerning the alleged arbitrary arrests, detention and ill-treatment of twelve waria, or transgender women, in Aceh province, the Indonesian government chose to respond.[9]

The Indonesian government in its response chose to highlight the fact that Aceh province had a special autonomy which meant it could frame by-laws to complement existing criminal laws. The response also highlighted that in Indonesia, there are ‘divergent views on LGBT/SOGI’ and that ‘the national philosophy emphasizes the primacy of religious values in daily life’. The response went on to assert ‘Indonesia’s commitment to respect human rights in parallel with social norms that exist in Indonesia’. The response also noted that ‘there should be no discrimination against minorities in Indonesia’ and stressed the responsibility of the Indonesian police to ‘protect’, anyone ‘who feels threatened due to his or her sexuality’.[10]  

While the response does raise many questions including the legality of placing ‘respecting social norms’ and the ‘commitment to respect human rights’ on the same plane [11] what is important to note is that the Government is not ‘negating’ LGBT existence but rather moving towards acknowledging LGBT persons rights to non-discrimination as a part of universal human rights. This form of response by Indonesia demands a different kind of engagement by civil society in the bid to ensure respect for LGBT rights in Indonesia.

While the response of Indonesia can be seen as offering a limited acknowledgment of the suffering imposed upon LGBT persons, the response by the government of Korea can be characterized as a more robust acknowledgment. In the joint communication to the government of Korea, the Independent Expert along with other mandate holders, drew attention to ‘recent cases of arrests, interrogations, detentions and prosecutions of soldiers and military personnel perceived to be gay, under the Republic of Korea’s Military Criminal Act.[12] Details regarding 16 cases of gay military personnel who were identified by the Cyber Investigation Team were brought to the attention of the Government.

The Government in its response justified the arrests as necessitated by Articles 92-6 of the Military Criminal Act under which the arrests of serving military personnel perceived to be gay was not to ‘impose criminal punishment by reason of one’s sexual orientation’, but in order to ‘uphold military order and discipline, taking into account the nature of communal living in the barracks’.

The response went on to note that, ‘an amendment bill to abolish the provision has been submitted to the National Assembly, so the Ministry of National Defense is considering the necessity of the amendment.’ The response also reiterated that, ‘the rights of homosexuals within the military are protected by a separate regulation. The regulation stipulates prohibition of discrimination based on sexual orientation; prohibition of any acts to identify homosexuals through questionnaires and the like; confidentiality of personal secrets so that even when one’s sexual orientation is revealed, such fact or record thereof will not be disclosed.’[13]

The three responses by Russia, Indonesia and the Republic of Korea indicate the range of possibilities between complete negation, limited acknowledgement and a robust acknowledgement. The robust response of the Republic of Korea lies in its promise of action to rectify the situation by committing to reforming the relevant laws. This provides an opening for civil society groups to advocate that Korea must fulfil its commitment and repeal the offending criminal provisions. With respect to Indonesia, while the acknowledgment of LGBTI persons as persons entitled to the enjoyment of universal human rights is an important starting point, the ‘solution’ of an internal investigation by the North Aceh chief of police is less than reassuring. With respect to Russia and Egypt the struggle is to assert that LGBTI persons are human beings. The strategy will have to be a continuous assertion of the humanity of LGBTI and hence the entitlement to full human rights, till such time as this fundamental premise is conceded. The strategy of ensuring that communications are filed by the other special procedures and not the Independent Expert on SOGI, may be another way to deny an opportunity to states which refuse to cooperate with the mandate to deny the humanity of LGBT persons.

State Responses to the Report in the 38th Session of the Human Rights Council

Conclusion

[5] Mandates of the Working Group on Arbitrary Detention; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

[6] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23080

[7] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81857

[8] Mandates of the Working Group on Arbitrary Detention; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the situation of human rights defenders; the Special Rapporteur on the human rights of internally displaced persons; the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

[9] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23635

[10] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81990

[11] See Vienna Declaration and Platform for Action which states that, ‘While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.’

[12] https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=23282

[13] https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=81820